Sunday, March 30, 2014

Jacob G. Hornberger: Pardon Martha Stewart and Joseph Nacchio

The Get Out of Jail Free card that the Justice Department has given to national-security state official James R. Clapper can’t help to bring to mind what the feds did to Martha Stewart.

Clapper commits perjury before Congress and nothing happens to him.

Stewart lies to some federal agent when she’s not even under oath and she’s indicted, prosecuted, convicted, and sentenced to five months in prison and fined.

How can anyone claim that that type of justice system is fair? Isn’t justice supposed to be based on equal treatment under law? Isn’t everyone supposed to be treated the same? Why should federal officials be exempted from the same criminal laws that are enforced against private citizens? If private citizens are going to be punished for lying to federal officials, why shouldn’t federal officials who lie to Congress under oath be punished for perjury?

Some defenders of this dual system of justice say that Clapper didn’t really have an effective choice — that he had to lie to protect the federal government’s super-secret, illegal surveillance scheme over the American people.

That’s a crock. When Clapper was asked whether the NSA had collected "any type of data at all on millions or hundreds of millions of Americas, all he had to do is say: "Sir, I am not permitted to discuss any aspect of what the NSA is doing or not doing."

Instead, Clapper made the conscious choice to lie because he never figured he’d get caught. He responded under oath, "No, sir … not wittingly."

He lied and he knew he was lying, and he knew he was under oath. He exercised his free will by choosing to deceive Congress, the official elected representatives of the American people. He knew precisely what he was doing and he thought he could get away with it. If Edward Snowden had not revealed the truth about the NSA’s super-secret, illicit, and illegal surveillance scheme over the American people, Clapper would undoubtedly still be wallowing in his intentional, knowing, and deliberate deception of Congress.

Even worse is the fact that Stewart supposedly lied in the course of an investigation into supposed violations of federal "insider trading" laws. If there was ever a ridiculous economic crime, it is the law that criminalizes "insider trading."

In fact, the real reason for this particular economic crime, along with all other economic crimes, is to provide government officials with the ability to go after people in the business sector and to seize money from wealthy people to help finance the ever-growing, voracious needs of the welfare-warfare state. (See my 2008 article "Free Mark Cuban and Abolish the SEC, especially the quote by the slimy federal bureaucrat Dr. Floyd Ferris within the article.") Economic crimes are the same hammer that Russian and Chinese officials employ against businessmen in the private sector, ensuring that they "play ball" with the government, remain quiet about government policies they disagree with, or, even better, ardently support what the government is doing.

One of the best examples of this phenomenon involves former Qwest CEO Joseph Nacchio. When the feds proposed their super-secret deal with various American telecoms to illegally share confidential information about their customers with NSA officials, Nacchio, to his everlasting credit, refused to go along with the illegal scheme, even while all the other telecom CEOs chose to sell their customers down the river in order to curry favor with the feds.

Nacchio, however, paid a high price for his principled stand. The feds didn’t like the fact that someone said no to their illegal scheme. They wanted everyone to participate in their wrongdoing. So they just dug up some ridiculous insider-trading violation and got their vengeance against Nacchio that way, the same type of method that Russian President Vladimir Putin uses against Russian businessmen who oppose his policies.

Nacchio ended up serving six years in jail and was just released a few months ago. See here and here for an interesting interview he gave last week to Maria Bartiromo on Fox Business Channel, his first public statement since being released from jail. See this interesting article about Nacchio’s interview.

Among the worst things about the Stewart case is that the feds didn’t even charge Stewart with some ridiculous insider-trading violation. Instead, they charged her with failing to tell the truth to a federal agent who was investigating whether she violated insider trading laws with some stock trades.

The feds said that it was important to go after Stewart to send a message of how important it is for citizens to tell federal officials the truth, even when they are not under oath.

Well, why doesn’t the same principle apply to federal officials who lied under oath to our elected representatives? How are our elected representatives supposed to make correct decisions if their decisions are based on perjured testimony from national-security state officials?

Moreover, once national-security state officials see that they are free to commit perjury before Congress, why should any of them ever tell the truth when testifying before Congress?

If Clapper gets a pass for perjury, then Stewart deserves a pardon — and, for that matter, an apology — for being punished for some supposed ridiculous lie to some federal agent who shouldn’t have been investigating her in the first place.

For that matter, the feds should also pardon and apologize to Joseph Nacchio for what they did to a man who did everything right in refusing to participate in an illegal federal scheme, one that involved selling his customers down the river. That type of action should be praised in a society, not condemned.

In the process, let’s ditch insider-trading laws and all other economic crimes. (See, for example, "The Fraud of Insider-Trading Law" by Sheldon Richman). Such laws are found in totalitarian countries like Russia and China. They have no place in a country whose heritage is based on economic freedom, private property, and free markets.

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